Chemical Data Reporting; Requirements for Inorganic Byproduct Chemical Substances; Notice of Intent To Negotiate, 90843-90848 [2016-30177]
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Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Notices
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contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
2. Tips for preparing your comments.
When preparing and submitting your
comments, see the commenting tips at
https://www.epa.gov/dockets/
comments.html.
3. Environmental justice. EPA seeks to
achieve environmental justice, the fair
treatment and meaningful involvement
of any group, including minority and/or
low-income populations, in the
development, implementation, and
enforcement of environmental laws,
regulations, and policies. To help
address potential environmental justice
issues, EPA seeks information on any
groups or segments of the population
who, as a result of their location,
cultural practices, or other factors, may
have atypical or disproportionately high
and adverse human health impacts or
environmental effects from exposure to
the pesticides discussed in this
document, compared to the general
population.
II. Registration Applications
EPA has received applications to
register new uses for pesticide products
containing currently registered active
ingredients. Pursuant to the provisions
of FIFRA section 3(c)(4) (7 U.S.C.
136a(c)(4)), EPA is hereby providing
notice of receipt and opportunity to
comment on these applications. Notice
of receipt of these applications does not
imply a decision by EPA on these
applications. For actions being
evaluated under EPA’s public
participation process for registration
actions, there will be an additional
opportunity for public comment on the
proposed decisions. Please see EPA’s
public participation Web site for
additional information on this process
(https://www2.epa.gov/pesticideregistration/public-participationprocess-registration-actions). EPA
received the following applications to
register new uses for pesticide products
containing currently registered active
ingredients:
1. EPA Registration Number: 279–
3055. Docket ID Number: EPA–HQ–
OPP–2016–0352. Applicant: FMC
Corporation, Agricultural Products
Group, 1735 Market St., Philadelphia,
PA 19103. Active Ingredient: Bifenthrin.
Product Type: Insecticide. Proposed
Use: Avocado; Low Growing Berry
Subgroup 13–07G; Peach Subgroup 12–
12B; Pepper/Eggplant Subgroup 8–10B;
Pome Fruit Group 11–10 (except
Mayhaw); Pomegranate; Small Fruit
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Vine Climbing Subgroup 13–07F (except
Fuzzy Kiwifruit); and Tomato Subgroup
8–10A. Contact: RD.
2. EPA Registration Number: 279–
3108. Docket ID Number: EPA–HQ–
OPP–2016–0352. Applicant: FMC
Corporation, Agricultural Products
Group, 1735 Market St., Philadelphia,
PA 19103. Active Ingredient: Bifenthrin.
Product Type: Insecticide. Proposed
Use: Caneberries (Subgroup 13–07A);
Cranberry; Fruit, Citrus Group 10–10;
Low Growing Berries (Subgroup 13–
07G) except Cranberry; Nut, Tree Group
14–12; Peach Subgroup 12–12B; Pepper/
Eggplant (Subgroup 8–10B); Pome Fruit
Group 11–10 (except Mayhaw);
Pomegranate; Small Fruit Vine Climbing
except Fuzzy Kiwifruit (Subgroup 13–
07F); and Tomato (Subgroup 8–10A).
Contact: RD.
3. EPA Registration Number: 279–
3313. Docket ID Number: EPA–HQ–
OPP–2016–0352. Applicant: FMC
Corporation, Agricultural Products
Group, 1735 Market St., Philadelphia,
PA 19103. Active Ingredient: Bifenthrin.
Product Type: Insecticide. Proposed
Use: Brassica, Leafy Greens Subgroup 4–
16B; Caneberries (Subgroup 13–07A);
Fruit, Citrus Group 10–10; Nut, Tree
Group 14–12; Peach Subgroup 12–12B;
Pepper/Eggplant (Subgroup 8–10B);
Pome Fruit Group 11–10 (except
Mayhaw); Pomegranate; Small Fruit
Vine Climbing except Fuzzy Kiwifruit
(Subgroup 13–07F); and Tomato
(Subgroup 8–10A). Contact: RD.
4. EPA Registration Numbers: 279–
3315 and 279–3329. Docket ID Number:
EPA–HQ–OPP–2016–0352. Applicant:
FMC Corporation, Agricultural Products
Group, 1735 Market St., Philadelphia,
PA 19103. Active Ingredient: Bifenthrin,
zeta-Cypermethrin. Product Type:
Insecticide. Proposed Use: Avocado.
Contact: RD.
5. EPA Registration Number: 11678–
66. Docket ID Number: EPA–HQ–OPP–
2016–0352. Applicant: ADAMA
Makhteshim, 3120 Highwoods Blvd.,
Suite 100, Raleigh, NC 27604. Active
Ingredient: Bifenthrin. Product Type:
Insecticide. Proposed Use: Cranberry.
Contact: RD.
6. EPA File Symbol: 46597–U. Docket
ID Number: EPA–HQ–OPP–2016–0605.
Applicant: Chemstar Corp., 120
Interstate West Parkway, Suite 100,
Lithia Springs, GA 30122. Active
Ingredient: Hypochlorous Acid. Product
Type: Antimicrobial. Proposed Use:
End-use product for antimicrobial fruit
and vegetable wash. Contact: AD.
7. EPA Registration Numbers: 66222–
99, 66222–236, and 66222–261. Docket
ID Number: EPA–HQ–OPP–2016–0352.
Applicant: Makhteshim Agan of North
America, Inc. (d/b/a ADAMA), 3120
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90843
Highwoods Blvd., Suite 100, Raleigh,
NC 27604. Active Ingredient: Bifenthrin.
Product Type: Insecticide. Proposed
Use: Cranberry. Contact: RD.
8. EPA Registration Number: 73049–
45. Docket ID Number: EPA–HQ–OPP–
2016–0659. Applicant: Valent
BioSciences Corporation, 870
Technology Way, Libertyville, IL 60048.
Active Ingredient:
Aminoethoxyvinylglycine
Hydrochloride (AVG). Product Type:
Plant Growth Regulator (PGR). Proposed
Use: Blueberries at flowering. Contact:
BPPD.
9. EPA Registration Number: 73049–
58. Docket ID Number: EPA–HQ–OPP–
2016–0659. Applicant: Valent
BioSciences Corporation, 870
Technology Way, Libertyville, IL 60048.
Active Ingredient:
Aminoethoxyvinylglycine
Hydrochloride (AVG). Product Type:
Plant Growth Regulator (PGR). Proposed
Use: Muskmelon seed production and
olive trees at flowering. Contact: BPPD.
10. EPA Registration Numbers:
80289–1, 80289–7, 80289–8, 80289–18,
80289–20, and 80289–21. Docket ID
Number: EPA–HQ–OPP–2016–0573.
Applicant: Isagro S.p.A. d/b/a Isagro
USA, Inc., 430 Davis Dr., Suite 240,
Morrisville, NC 27560. Active
Ingredient: Tetraconazole. Product
Type: Fungicide. Proposed Use: Dried
Shelled Pea and Bean (except Soybean)
(Crop Subgroup 6C), Barley, Rapeseed
(Crop Subgroup 20A), and Wheat.
Contact: RD.
Authority: 7 U.S.C. 136 et seq.
Dated: December 2, 2016.
Rob McNally,
Director, Biopesticides and Pollution
Prevention Division, Office of Pesticide
Programs.
[FR Doc. 2016–30178 Filed 12–14–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OPPT–2016–0597; FRL–9954–68]
Chemical Data Reporting;
Requirements for Inorganic Byproduct
Chemical Substances; Notice of Intent
To Negotiate
Environmental Protection
Agency (EPA).
ACTION: Notice of Intent to Establish
Negotiated Rulemaking Committee and
Negotiate a Proposed Rule.
AGENCY:
EPA is giving notice that it
intends to establish a Negotiated
Rulemaking Committee under the
Federal Advisory Committee Act
SUMMARY:
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(FACA) and the Negotiated Rulemaking
Act (NRA). The objective of the
Negotiated Rulemaking Committee will
be to negotiate a proposed rule that
would limit chemical data reporting
requirements under section 8(a) of the
Toxic Substances Control Act (TSCA),
as amended by the Frank. R. Lautenberg
Chemical Safety for the 21st Century
Act, for manufacturers of any inorganic
byproduct chemical substances, when
such byproduct chemical substances are
subsequently recycled, reused, or
reprocessed. The purpose of the
Negotiated Rulemaking Committee will
be to conduct discussions in a good
faith attempt to reach consensus on
proposed regulatory language. This
negotiation process is required by
section 8(a)(6) of TSCA. The Negotiated
Rulemaking Committee will consist of
representatives of parties with a
definable stake in the outcome of the
proposed requirements.
DATES: Comments must be received on
or before January 17, 2017.
ADDRESSES: Submit your comments,
identified by docket identification (ID)
number EPA–HQ–OPPT–2016–0597, by
one of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute.
• Mail: Document Control Office
(7407M), Office of Pollution Prevention
and Toxics (OPPT), Environmental
Protection Agency, 1200 Pennsylvania
Ave. NW., Washington, DC 20460–0001.
• Hand Delivery: To make special
arrangements for hand delivery or
delivery of boxed information, please
follow the instructions at https://
www.epa.gov/dockets/contacts.html.
Additional instructions on
commenting or visiting the docket,
along with more information about
dockets generally, is available at https://
www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: For
technical information contact: Susan
Sharkey, Chemical Control Division
(7405M), Office of Pollution Prevention
and Toxics, Environmental Protection
Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460–0001; telephone
number: (202) 564–8789; email address:
Sharkey.susan@epa.gov.
For general information contact: The
TSCA-Hotline, ABVI-Goodwill, 422
South Clinton Ave., Rochester, NY
14620; telephone number: (202) 554–
1404; email address: TSCA-Hotline@
epa.gov.
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SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
You may be potentially affected by
this action if you manufacture
(including manufacture as a byproduct
chemical substance) or import chemical
substances listed on the TSCA
Inventory. The following list of North
American Industrial Classification
System (NAICS) codes are not intended
to be exhaustive, but rather provides a
guide to help readers determine whether
this action may apply to them:
• Chemical manufacturers and
importers (NAICS codes 325 and
324110; e.g., chemical manufacturing
and processing and petroleum
refineries).
• Chemical users and processors who
may manufacture a byproduct chemical
substance (NAICS codes 22, 322, 331,
and 3344; e.g., utilities, paper
manufacturing, primary metal
manufacturing, and semiconductor and
other electronic component
manufacturing).
If you have any questions regarding
the applicability of this action to a
particular entity, consult the technical
person listed under FOR FURTHER
INFORMATION CONTACT.
B. What should I consider as I prepare
my comments for EPA?
1. Submitting CBI. Do not submit this
information to EPA through https://
www.regulations.gov or email. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information in a disk or CD–ROM that
you mail to EPA, mark the outside of the
disk or CD–ROM as CBI and then
identify electronically within the disk or
CD–ROM the specific information that
is claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
2. Tips for preparing your comments.
When preparing and submitting your
comments, see the commenting tips at
https://www.epa.gov/dockets/
comments.html.
II. Background
A. What action is the Agency taking?
As required by the Negotiated
Rulemaking Act of 1996 (NRA), EPA is
giving notice that the Agency intends to
establish a Negotiated Rulemaking
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Committee. The objective of this
Negotiated Rulemaking Committee will
be to develop a proposed rule providing
for limiting chemical data reporting
requirements, under TSCA section 8(a),
for manufacturers of any inorganic
byproduct chemical substances, when
such byproduct chemical substances are
subsequently recycled, reused, or
reprocessed. This negotiation process,
which includes the establishment of a
federal advisory committee, is required
by section 8(a)(6) of the Toxic
Substances Control Act (TSCA), as
amended by the Frank. R. Lautenberg
Chemical Safety for the 21st Century
Act (‘‘Lautenberg Act’’).
B. What is the Agency’s authority for
this action?
This notice announcing EPA’s intent
to establish a Negotiated Rulemaking
Committee to negotiate a proposed
regulation was developed under the
authority of sections 563 and 564 of the
Negotiated Rulemaking Act (NRA) (5
U.S.C. 561, Pub. L. 104–320). This
Negotiated Rulemaking Committee will
be a statutory committee under the
Federal Advisory Committee Act
(FACA) (5 U.S.C. App. 2, section
9(a)(1)). Any proposed regulation
resulting from the negotiation process
would be developed under the authority
of TSCA section 8 (15 U.S.C. 2607), as
amended by the Lautenberg Act (Pub. L.
114–182).
III. Negotiated Rulemaking
A. Why is the Agency pursuing a
negotiated rulemaking?
In the Lautenberg Act, Congress
mandated that EPA undertake a
negotiation process, pursuant to the
NRA, aimed at developing a rule to limit
TSCA section 8(a) chemical data
reporting requirements for
manufacturers of any inorganic
byproduct chemical substances, when
such byproduct chemical substances are
subsequently recycled, reused, or
reprocessed.
EPA sees potential benefits from
undertaking this negotiated rulemaking
process. A regulatory negotiation
process will allow EPA to engage
directly with informed, interested, and
affected parties, all of whom are
working together to resolve their
differences. Because a negotiating
committee includes representatives
from the major stakeholder groups
affected by or interested in the rule, the
number of public comments on any
proposed rule may be reduced and those
comments that are received may be
more moderate. EPA anticipates that
few substantive changes would be
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needed to any proposed rule resulting
from the negotiated rulemaking process.
Finally, EPA recognizes an observation
of the Administrative Conference of the
United States: ‘‘Experience indicates
that if the parties in interest were to
work together to negotiate the text of a
proposed rule, they might be able in
some circumstances to identify the
major issues, gauge their importance to
the respective parties, identify the
information and data necessary to
resolve the issues, and develop a rule
that is acceptable to the respective
interests, all within the contours of the
substantive statute.’’ ACUS
Recommendation 82–4.
B. What is the concept of negotiated
rulemaking?
Negotiated rulemaking is a process in
which a proposed rule is developed by
a committee composed of
representatives of all those interests that
will be significantly affected by the rule.
Decisions are made by consensus,
which the NRA defines as the
unanimous concurrence among interests
represented on a Negotiated Rulemaking
Committee, unless the Negotiated
Rulemaking Committee itself
unanimously agrees to use a different
definition. To start the process, the
Agency identifies all interests
potentially affected by the rulemaking
under consideration. To help in this
identification process, the Agency
publishes a notice in the Federal
Register, such as this one, which
identifies a preliminary list of interests
and requests public comment on that
list. Following receipt of the comments,
the Agency establishes a committee
representing these various interests to
negotiate a consensus on the terms of a
proposed rule. Representation on the
Negotiated Rulemaking Committee may
be direct, that is, each member
represents a specific interest, or may be
indirect, through coalitions of parties
formed for this purpose. The Agency is
a member of the Negotiated Rulemaking
Committee representing the Federal
government’s own set of interests. The
Negotiated Rulemaking Committee is
facilitated by a trained mediator, who
facilitates the negotiation process. The
role of this mediator, or facilitator, is to
apply proven consensus building
techniques to the advisory committee
setting.
If a regulatory negotiation advisory
committee reaches consensus on the
provisions of a proposed rule, the
Agency, consistent with its legal
obligations, would use such consensus
as the basis of a proposed rule, to be
published in the Federal Register. This
provides the required public notice and
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allows for a public comment period. All
participants and interested parties
would retain their rights to comment
and to seek judicial review. EPA
anticipates, however, that any
preproposal consensus agreed upon by
this Negotiated Rulemaking Committee
would effectively address all major
issues prior to publication of a proposed
rulemaking.
C. What is the Agency commitment?
In initiating this regulatory
negotiation process, EPA is making a
commitment to provide adequate
resources to ensure timely and
successful completion of the process.
This commitment includes making the
process a priority activity for all
representatives, components, officials,
and personnel of the Agency who need
to be involved in the rulemaking, from
the time of initiation until such time as
a final rule is issued or the process is
expressly terminated. EPA will provide
administrative support for the process
and will take steps to ensure that the
Negotiated Rulemaking Committee has
the dedicated resources it requires to
complete its work in a timely fashion.
These include the provision or
procurement of such support services
as: Properly equipped space adequate
for public meetings and caucuses;
logistical support; distribution of
background information; the service of a
facilitator; and such additional research
and other technical assistance as may be
necessary. If there is consensus within
the Negotiated Rulemaking Committee,
EPA will use the consensus to the
maximum extent possible, consistent
with the legal obligations of the Agency,
as the basis for a rule proposed by the
Agency for public notice and comment.
The Agency is committed to working in
good faith to seek consensus on a
proposal that is consistent with the legal
mandate of TSCA.
D. What is the negotiating consensus?
A key principle of negotiated
rulemaking is that agreement is by
consensus of all the interests. Thus, no
one interest or group of interests is able
to control the process. Again, the NRA
defines consensus as the unanimous
concurrence among interests
represented on a Negotiated Rulemaking
Committee, unless the Negotiated
Rulemaking Committee itself
unanimously agrees to use a different
definition. In addition, experience has
demonstrated that using a trained
mediator to facilitate this process will
assist all potential parties, including
EPA, to identify their interests in the
rule and so to be able to reevaluate
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previously stated positions on issues
involved in this rulemaking effort.
IV. Chemical Data Reporting for
Inorganic Byproduct Chemical
Substances
A. Chemical Data Reporting (CDR)
Framework
Under TSCA, EPA regulates the
manufacture, processing, distribution,
use, and disposal of chemical
substances in the United States. The
TSCA Inventory of Chemical Substances
(TSCA Inventory) lists the chemical
substances which are manufactured or
processed in the United States (also
called ‘‘existing chemical substances’’).
Chemical substances not on the TSCA
Inventory are known as ‘‘new chemical
substances’’ and are required to be
reviewed through EPA’s new chemical
program (under TSCA section 5) prior to
the commencement of manufacture or
processing. There are over 85,000
chemical substances listed on the TSCA
Inventory.
In 1986, EPA created the Inventory
Update Reporting (IUR) regulation
under TSCA section 8 to collect, every
four years, limited information on the
manufacture (which includes import) of
organic chemical substances listed on
the TSCA Inventory, thereby providing
more up-to-date production volume
information on the chemical substances
in U.S. commerce. In 2005, EPA
amended the IUR to require the
reporting of information on inorganic
chemical substances and to collect
additional manufacturing, processing,
and use information. EPA has since
made additional changes to the
reporting requirements, and in 2011
changed the name of the reporting rule
to Chemical Data Reporting. CDR
regulations are currently codified at 40
CFR part 711. EPA believes CDR is the
only current reporting obligation under
TSCA section 8(a) that is likely to affect
the manufacturers of inorganic
byproduct chemical substances.
Information collected under CDR is
used to support Agency programs,
providing exposure-related data for
chemical substances subject to TSCA in
U.S. commerce. This information is also
made publicly available, to the extent
possible while continuing to protect
submitted information claimed as
confidential business information.
Manufacturers of inorganic chemical
substances first reported under the IUR
in 2006. They also reported under the
CDR in 2012 and 2016. Specific
reporting requirements for these
manufacturers were phased in, to allow
for the industry to better understand the
reporting requirements and for EPA to
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gain a better understanding of the
industry. In recent years, the regulatory
requirement to report byproduct
chemical substances (and the
availability of exemptions from that
requirement) has been a frequent topic
of discussion.
B. Inorganic Byproduct Chemical
Substances Under CDR
A byproduct chemical substance is a
chemical substance produced without a
separate commercial intent during the
manufacture, processing, use, or
disposal of another chemical substance
or mixture. Such byproduct chemical
substances may, or may not, in
themselves have commercial value.
They are nonetheless produced for the
purpose of obtaining a commercial
advantage. Because byproduct chemical
substances are manufactured for a
commercial purpose, such
manufacturing is reportable under CDR
unless covered by a specific reporting
exemption. CDR contains a specific
reporting exemption for the
manufacture of byproduct chemical
substances, limited to cases where those
byproduct chemical substances are not
used for any commercial purposes (or
are only used for certain limited
commercial purposes) after they are
manufactured. 40 CFR 711.10(c).
Inorganic byproduct chemical
substances are often recycled. The
recycling of a byproduct chemical
substance may qualify as a commercial
purpose beyond the limited commercial
purposes encompassed by 40 CFR
711.10(c). If so, then the CDR exemption
for the manufacturer of a byproduct
chemical substance is unavailable.
Beginning in 2006, EPA became aware
of a variety of questions raised by the
manufacturers of inorganic byproduct
chemical substances about their
obligations to report their manufacture
of those byproduct chemical substances.
EPA has since provided detailed
guidance to address a variety of
questions that have been raised. See 75
FR 49675–6 (2010); 76 FR 50832–3,
50849–50851 (2011). In 2011, EPA also
stated that it would examine CDR
information related to byproduct
chemical substances to identify whether
there are segments of byproduct
chemical substance manufacturing for
which EPA can determine that there is
no need for the CDR information to
continue to be collected, either for 2016
or for future reporting cycles. 76 FR
50832–3 (2011). EPA did not amend the
CDR requirements for the 2016 reporting
cycle. Documents providing information
to assist inorganic byproduct chemical
substance manufacturers with reporting
under CDR requirements include:
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Instructions for the 2016 TSCA CDR
(Ref. 1); CDR Byproduct and Recycling
Scenarios (Ref. 2); TSCA CDR Fact Sheet
for the Printed Circuit Board Industry
(Ref. 3); and TSCA CDR Fact Sheet for
Reporting Manufactured Chemical
Substances from Metal Mining and
Related Activities (Ref. 4).
On June 22, 2016, TSCA was
amended by the Lautenberg Act. TSCA
now includes a requirement that EPA
enter into a negotiated rulemaking,
pursuant to the NRA, to develop and
publish a proposed rule to limit the
reporting requirements under TSCA
section 8(a), for manufacturers of any
inorganic byproduct chemical
substances, when such byproduct
chemical substances, whether by the
byproduct chemical substance
manufacturer or by any other person,
are subsequently recycled, reused, or
reprocessed. The objective of the
negotiated rulemaking process is to
develop and publish a proposed rule by
June 22, 2019. In the event a proposed
rule is developed through the negotiated
rulemaking process, a final rule
‘‘resulting from such negotiated
rulemaking’’ must be issued by
December 22, 2019. 15 U.S.C.
2607(a)(6).
EPA construes its obligation to
propose and finalize a rule under TSCA
section 8(a)(6) as being contingent on
the Negotiated Rulemaking Committee
reaching a consensus. EPA’s
interpretation is based on several
factors. First, TSCA section 8(a)(6)(A)
does not give any direction on how CDR
reporting requirements for the specified
byproduct chemical substance
manufacturers should be limited, other
than directing that the particular
limitations should be negotiated.
Second, EPA’s obligation to finalize a
rule under TSCA section 8(a)(6)(B)
presupposes that such rule would be
one ‘‘resulting from such negotiated
rulemaking.’’ While EPA would have
authority to issue an amendment to the
CDR even if negotiation failed to
achieve a consensus, such a rule would
not be a rule resulting from the
negotiated rulemaking. Accordingly,
TSCA section 8(a)(6)(B) presupposes
that the negotiated rulemaking process
reached a consensus in directing EPA to
issue a final rule. If the obligation to
issue a final rule is so contingent, then
it stands to reason that the prior
obligation to issue a proposal is
similarly contingent. Third, the time
allotted for issuing a final rule (i.e., six
months) is relatively short, consistent
with a presupposition that the proposal
in question would be the product of a
successful negotiation. As noted in Unit
III., the process of responding to
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comment on a proposal would likely be
simplified if that proposal is itself the
result of a previously negotiated
consensus. For the reasons described
above, if consensus cannot be reached,
and there is no agreement upon which
to base a proposal, then there is no
further statutory obligation to issue a
proposal or a final rule.
V. Proposed Negotiating Procedures
A. Interests Involved
Section 562 of the NRA defines the
term ‘‘interest’’ as one of ‘‘multiple
parties which have a similar point of
view or which are likely to be affected
in a similar manner.’’ We anticipate that
the following key interests are likely to
be significantly affected by the rule to be
addressed by the Negotiated
Rulemaking Committee while
negotiating how to limit CDR
requirements for manufacturers of any
inorganic byproduct chemical
substances, when such byproduct
chemical substances are subsequently
recycled, reused, or reprocessed:
D Inorganic chemical manufacturers
and processors, including metal mining
and related activities;
D Recyclers, including scrap
recyclers;
D Industry advocacy groups;
D Environmental advocacy groups;
D Federal, State, or Tribal
governments; and
D Employee advocacy groups, such as
labor unions.
B. Negotiated Rulemaking Committee
Formation
The Negotiated Rulemaking
Committee will be formed and operated
in full compliance with the
requirements of FACA in a manner
consistent with the requirements of the
NRA.
C. Negotiated Rulemaking Committee
Membership
The Agency intends to conduct the
negotiated rulemaking proceedings with
particular attention to ensuring full and
adequate representation of those
interests that may be significantly
affected by a rule providing for limiting
CDR requirements for inorganic
byproduct chemical substances. We
have listed those interests likely to be
significantly affected by a rule in Unit
V.A., and the following list identifies
the parties that the Agency has initially
identified as representing interests
likely to be significantly affected by a
rule:
• Aluminum Association
• American Chemistry Council
• American Coal Ash Association
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• Environmental Defense Fund
• Institute of Scrap Recycling Industries
• IPC—Association Connecting
Electronics Industries
• North American Metals Council
• National Mining Association
• U.S. Environmental Protection
Agency
• Utility Solid Waste Activities Group
The listed parties have been
preliminarily identified by EPA as being
either a potential member of the
Negotiated Rulemaking Committee, or a
potential member of a coalition that
would in turn nominate a candidate to
represent one of the significantly
affected interests listed in Unit V.A.
This list is not presented as a complete
or exclusive list from which Negotiated
Rulemaking Committee members will be
selected, nor does inclusion on the list
mean that a party on the list has agreed
to participate as a member of the
Negotiated Rulemaking Committee or as
a member of a coalition. This list merely
indicates those parties that represent
interests that EPA has tentatively
identified as being significantly affected
by a rule providing for limiting CDR
requirements for inorganic byproduct
chemical substances.
EPA anticipates that the Negotiated
Rulemaking Committee will be
comprised of approximately 10–25
members representing significantly
affected interests. The EPA
Administrator will select members
carefully to ensure that there is a
balanced representation of such
interests on the Negotiated Rulemaking
Committee. EPA anticipates that the
Negotiated Rulemaking Committee will
contain representatives from industry,
environmental groups, and state, local,
and tribal governments.
One purpose of this document is to
determine whether the negotiated
rulemaking will significantly affect
interests that are not listed in Unit V.A.,
as well as whether the list of parties the
Agency has listed identifies accurately
and comprehensively a group of
stakeholders representing the
significantly affected interests listed in
Unit V.A. EPA requests comment and
suggestions on the list of significantly
affected interests, as well as the list of
proposed representatives of those
interests. EPA recognizes that any
regulatory actions it takes under this
program may at times affect various
segments of society in different ways,
and that this may in some cases produce
unique interests in a rule based on
demographic factors. Particular
attention will be given by the Agency to
ensure that any unique interests that
have been identified in this regard, and
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that may be significantly affected by any
rule resulting from the negotiation, are
represented.
This document affords potential
participants the opportunity to request
representation in the negotiations.
Request such representation by
submitting a comment as described
under ADDRESSES in this notice.
Section 565(b) of the NRA requires
the Agency to limit membership on a
Negotiated Rulemaking Committee to 25
members, unless the Agency determines
that more members are necessary in
order for the Negotiated Rulemaking
Committee to function or to achieve
balanced membership. The Agency
believes that the negotiating group
should not exceed 25 members, which
would make it difficult to conduct
effective negotiations. EPA is aware that
there are many more than 25 potential
participants to consider for the
Negotiated Rulemaking Committee. The
Agency does not believe, nor does the
NRA contemplate, that each
significantly affected interest must
participate directly in the negotiations;
however, each significantly affected
interest can be adequately represented.
To have a successful negotiation, it is
important for significantly affected
interests to identify and form coalitions
that adequately represent those
interests. These coalitions, to provide
adequate representation, must agree to
support, both financially and
technically, a member to the Negotiated
Rulemaking Committee whom they will
choose to represent their interest. The
Agency believes it is very important to
recognize that interested parties who are
not selected to membership on the
Negotiated Rulemaking Committee can
still make valuable contributions to this
negotiated rulemaking effort in any of
several ways:
• The party could request to be
placed on the Negotiated Rulemaking
Committee mailing list, submitting
written comments, as appropriate;
• The party could attend the
Negotiated Rulemaking Committee
meetings, which are open to the public,
caucus with his or her interest’s member
on the Negotiated Rulemaking
Committee, or even address the
Negotiated Rulemaking Committee
(usually allowed at the end of an issue’s
discussion or the end of the session, as
time permits); or
• The party could assist a workgroup
that might be established by the
Negotiated Rulemaking Committee.
An advisory committee may convene
informal workgroups to assist the
Negotiated Rulemaking Committee in
‘‘staffing’’ various discrete and technical
matters (e.g., researching or preparing
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summaries of the technical literature or
comments on particular matters such as
economic issues) so as to facilitate
Negotiated Rulemaking Committee
deliberations. They also might assist in
estimating costs and drafting regulatory
text on issues associated with the
analysis of the affordability and benefits
addressed, and formulating drafts of the
various provisions and their
justification previously developed by
the Negotiated Rulemaking Committee.
Given their staffing function,
workgroups usually consist of
participants who have expertise or
particular interest in the technical
matter(s) being studied. Because it
recognizes the importance of this
staffing work for the Negotiated
Rulemaking Committee, EPA will
provide appropriate administrative and
technical expertise for such workgroups.
EPA requests comment regarding
particular appointments to membership
on the Negotiated Rulemaking
Committee. Members can be individuals
or organizations. If the effort is to be
successful, participants should be able
to fully and adequately represent the
viewpoints of their respective interests.
Those who wish to be appointed as
members of the Negotiated Rulemaking
Committee should submit a request to
EPA by submitting a comment as
described under ADDRESSES in this
notice. The list of potential Negotiated
Rulemaking Committee members
provided earlier in this document
includes those who have been initially
identified by EPA as being either a
potential member of the Negotiated
Rulemaking Committee, or a potential
member of a coalition that would in
turn nominate a candidate to represent
one of the significantly affected interests
on the Negotiated Rulemaking
Committee.
EPA values and welcomes diversity.
In an effort to obtain nominations of
diverse candidates, EPA encourages
nominations of women and men of all
racial and ethnic groups.
D. Good Faith Negotiation
Negotiated Rulemaking Committee
members should be willing to negotiate
in good faith and have the authority,
from her or his constituency, to do so.
The first step is to ensure that each
member has good communications with
her or his constituencies. An intrainterest network of communication
should be established to bring
information from the support
organization to the member at the table,
and to take information from the table
back to the support organization.
Second, each organization or coalition
should, therefore, designate as its
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representative an official with
credibility and authority to insure that
needed information is provided and
decisions are made in a timely fashion.
Negotiated rulemaking efforts can
require a very significant contribution of
time by the appointed members. The
convening meeting of the Negotiated
Rulemaking Committee is expected to
be held in March 2017, and the work of
the Negotiated Rulemaking Committee
is expected to conclude approximately
in September 2017.
Other qualities that can be very
helpful are negotiating experience and
skills, as well as sufficient technical
knowledge to participate in substantive
negotiations. Certain concepts are
central to negotiating in good faith. One
is the willingness to bring key issues to
the bargaining table in an attempt to
reach a consensus, instead of keeping
issues in reserve. The second is a
willingness to keep the issues at the
table and not take them to other forums.
Finally, good faith includes a
willingness to move away from the type
of positions usually taken in a more
traditional rulemaking process, and
instead explore openly with other
parties all ideas that may emerge from
the discussions of the Negotiated
Rulemaking Committee.
E. Facilitator
The facilitator will not be involved
with the substantive development of
any proposed rule. Rather, the
facilitator’s role generally includes
facilitating the meetings of the
Negotiated Rulemaking Committee in an
impartial manner and impartially
assisting the members of the Negotiated
Rulemaking Committee in conducting
discussions and negotiations.
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F. EPA Representative
The EPA representative will be a full
and active participant in the consensus
building negotiations. The Agency’s
representative will meet regularly with
various senior Agency officials, briefing
them on the negotiations and receiving
their suggestions and advice, in order to
effectively represent the Agency’s views
regarding the issues before the
Negotiated Rulemaking Committee.
EPA’s representative also will ensure
that the entire spectrum of federal
governmental interests affected by the
rulemaking, including the Office of
Management and Budget (OMB) and
other Departments and agencies, are
kept informed of the negotiations and
encouraged to make their concerns
known in a timely fashion.
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VI. Comments Requested
EPA requests comment on the extent
to which the issues, interests,
Negotiated Rulemaking Committee
representatives, and procedures
described in this document are adequate
and appropriate.
VII. References
The following is a listing of the
documents that are specifically
referenced in this document. The docket
includes these documents and other
information considered by EPA,
including documents referenced within
the documents that are included in the
docket, even if the referenced document
is not physically located in the docket.
For assistance in locating these other
documents, please consult the technical
person listed under FOR FURTHER
INFORMATION CONTACT.
1. EPA (2016). Instructions for Reporting
2016 TSCA CDR, https://www.epa.gov/
sites/production/files/2016-05/
documents/instructions_for_reporting_
2016_tsca_cdr_13may2016.pdf.
Retrieved October 21, 2016.
2. EPA (2012). CDR Byproduct and Recycling
Scenarios, https://www.epa.gov/sites/
production/files/documents/2012_cdr_
byproducts_scenaros_0.pdf. Retrieved
October 21, 2016.
3. EPA (2016). TSCA CDR Fact Sheet:
Byproducts Reporting for the Printed
Circuit Board Industry, https://
www.epa.gov/sites/production/files/
2016-02/documents/final_cdr_fact_
sheet_printed_circuit_board_2_22_
16.pdf. Retrieved October 21, 2016.
4. EPA (2016). TSCA CDR Fact Sheet:
Reporting Manufactured Chemical
Substances from Metal Mining and
Related Activities, https://www.epa.gov/
sites/production/files/2016-05/
documents/cdr_fact_sheet_metal_
mining_5may2016.pdf. Retrieved
October 21, 2016.
Authority: 15 U.S.C. 2601 et seq.
Dated: December 7, 2016.
Jim Jones,
Assistant Administrator, Office of Chemical
Safety and Pollution Prevention.
[FR Doc. 2016–30177 Filed 12–14–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[9956–91–OEI]
Cross-Media Electronic Reporting:
Authorized Program Revision
Approval, State of Oregon
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
This notice announces EPA’s
approval of the State of Oregon’s request
SUMMARY:
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to revise/modify its EPA Administered
Permit Programs: The National Pollutant
Discharge Elimination System EPAauthorized program to allow electronic
reporting.
DATES: EPA’s approval is effective
December 15, 2016.
FOR FURTHER INFORMATION CONTACT:
Karen Seeh, U.S. Environmental
Protection Agency, Office of
Environmental Information, Mail Stop
2823T, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460, (202) 566–1175,
seeh.karen@epa.gov.
SUPPLEMENTARY INFORMATION: On
October 13, 2005, the final Cross-Media
Electronic Reporting Rule (CROMERR)
was published in the Federal Register
(70 FR 59848) and codified as part 3 of
title 40 of the CFR. CROMERR
establishes electronic reporting as an
acceptable regulatory alternative to
paper reporting and establishes
requirements to assure that electronic
documents are as legally dependable as
their paper counterparts. Subpart D of
CROMERR requires that state, tribal or
local government agencies that receive,
or wish to begin receiving, electronic
reports under their EPA-authorized
programs must apply to EPA for a
revision or modification of those
programs and obtain EPA approval.
Subpart D provides standards for such
approvals based on consideration of the
electronic document receiving systems
that the state, tribe, or local government
will use to implement the electronic
reporting. Additionally, § 3.1000(b)
through (e) of 40 CFR part 3, subpart D
provides special procedures for program
revisions and modifications to allow
electronic reporting, to be used at the
option of the state, tribe or local
government in place of procedures
available under existing programspecific authorization regulations. An
application submitted under the subpart
D procedures must show that the state,
tribe or local government has sufficient
legal authority to implement the
electronic reporting components of the
programs covered by the application
and will use electronic document
receiving systems that meet the
applicable subpart D requirements.
On November 3, 2016, the Oregon
Department of Environmental Quality
(OR DEQ) submitted an application
titled ‘‘National Pollutant Discharge
Elimination System’’ for revision/
modification to its EPA-approved
program under title 40 CFR to allow
new electronic reporting. EPA reviewed
OR DEQ’s request to revise/modify its
EPA-authorized programs and, based on
this review, EPA determined that the
application met the standards for
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[Federal Register Volume 81, Number 241 (Thursday, December 15, 2016)]
[Notices]
[Pages 90843-90848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30177]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OPPT-2016-0597; FRL-9954-68]
Chemical Data Reporting; Requirements for Inorganic Byproduct
Chemical Substances; Notice of Intent To Negotiate
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Intent to Establish Negotiated Rulemaking Committee
and Negotiate a Proposed Rule.
-----------------------------------------------------------------------
SUMMARY: EPA is giving notice that it intends to establish a Negotiated
Rulemaking Committee under the Federal Advisory Committee Act
[[Page 90844]]
(FACA) and the Negotiated Rulemaking Act (NRA). The objective of the
Negotiated Rulemaking Committee will be to negotiate a proposed rule
that would limit chemical data reporting requirements under section
8(a) of the Toxic Substances Control Act (TSCA), as amended by the
Frank. R. Lautenberg Chemical Safety for the 21st Century Act, for
manufacturers of any inorganic byproduct chemical substances, when such
byproduct chemical substances are subsequently recycled, reused, or
reprocessed. The purpose of the Negotiated Rulemaking Committee will be
to conduct discussions in a good faith attempt to reach consensus on
proposed regulatory language. This negotiation process is required by
section 8(a)(6) of TSCA. The Negotiated Rulemaking Committee will
consist of representatives of parties with a definable stake in the
outcome of the proposed requirements.
DATES: Comments must be received on or before January 17, 2017.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPPT-2016-0597, by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the online instructions for submitting comments. Do not submit
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute.
Mail: Document Control Office (7407M), Office of Pollution
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington, DC 20460-0001.
Hand Delivery: To make special arrangements for hand
delivery or delivery of boxed information, please follow the
instructions at https://www.epa.gov/dockets/contacts.html.
Additional instructions on commenting or visiting the docket, along
with more information about dockets generally, is available at https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: For technical information contact:
Susan Sharkey, Chemical Control Division (7405M), Office of Pollution
Prevention and Toxics, Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number:
(202) 564-8789; email address: Sharkey.susan@epa.gov.
For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address: TSCA-Hotline@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
You may be potentially affected by this action if you manufacture
(including manufacture as a byproduct chemical substance) or import
chemical substances listed on the TSCA Inventory. The following list of
North American Industrial Classification System (NAICS) codes are not
intended to be exhaustive, but rather provides a guide to help readers
determine whether this action may apply to them:
Chemical manufacturers and importers (NAICS codes 325 and
324110; e.g., chemical manufacturing and processing and petroleum
refineries).
Chemical users and processors who may manufacture a
byproduct chemical substance (NAICS codes 22, 322, 331, and 3344; e.g.,
utilities, paper manufacturing, primary metal manufacturing, and
semiconductor and other electronic component manufacturing).
If you have any questions regarding the applicability of this
action to a particular entity, consult the technical person listed
under FOR FURTHER INFORMATION CONTACT.
B. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
https://www.regulations.gov or email. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM
as CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for preparing your comments. When preparing and submitting
your comments, see the commenting tips at https://www.epa.gov/dockets/comments.html.
II. Background
A. What action is the Agency taking?
As required by the Negotiated Rulemaking Act of 1996 (NRA), EPA is
giving notice that the Agency intends to establish a Negotiated
Rulemaking Committee. The objective of this Negotiated Rulemaking
Committee will be to develop a proposed rule providing for limiting
chemical data reporting requirements, under TSCA section 8(a), for
manufacturers of any inorganic byproduct chemical substances, when such
byproduct chemical substances are subsequently recycled, reused, or
reprocessed. This negotiation process, which includes the establishment
of a federal advisory committee, is required by section 8(a)(6) of the
Toxic Substances Control Act (TSCA), as amended by the Frank. R.
Lautenberg Chemical Safety for the 21st Century Act (``Lautenberg
Act'').
B. What is the Agency's authority for this action?
This notice announcing EPA's intent to establish a Negotiated
Rulemaking Committee to negotiate a proposed regulation was developed
under the authority of sections 563 and 564 of the Negotiated
Rulemaking Act (NRA) (5 U.S.C. 561, Pub. L. 104-320). This Negotiated
Rulemaking Committee will be a statutory committee under the Federal
Advisory Committee Act (FACA) (5 U.S.C. App. 2, section 9(a)(1)). Any
proposed regulation resulting from the negotiation process would be
developed under the authority of TSCA section 8 (15 U.S.C. 2607), as
amended by the Lautenberg Act (Pub. L. 114-182).
III. Negotiated Rulemaking
A. Why is the Agency pursuing a negotiated rulemaking?
In the Lautenberg Act, Congress mandated that EPA undertake a
negotiation process, pursuant to the NRA, aimed at developing a rule to
limit TSCA section 8(a) chemical data reporting requirements for
manufacturers of any inorganic byproduct chemical substances, when such
byproduct chemical substances are subsequently recycled, reused, or
reprocessed.
EPA sees potential benefits from undertaking this negotiated
rulemaking process. A regulatory negotiation process will allow EPA to
engage directly with informed, interested, and affected parties, all of
whom are working together to resolve their differences. Because a
negotiating committee includes representatives from the major
stakeholder groups affected by or interested in the rule, the number of
public comments on any proposed rule may be reduced and those comments
that are received may be more moderate. EPA anticipates that few
substantive changes would be
[[Page 90845]]
needed to any proposed rule resulting from the negotiated rulemaking
process. Finally, EPA recognizes an observation of the Administrative
Conference of the United States: ``Experience indicates that if the
parties in interest were to work together to negotiate the text of a
proposed rule, they might be able in some circumstances to identify the
major issues, gauge their importance to the respective parties,
identify the information and data necessary to resolve the issues, and
develop a rule that is acceptable to the respective interests, all
within the contours of the substantive statute.'' ACUS Recommendation
82-4.
B. What is the concept of negotiated rulemaking?
Negotiated rulemaking is a process in which a proposed rule is
developed by a committee composed of representatives of all those
interests that will be significantly affected by the rule. Decisions
are made by consensus, which the NRA defines as the unanimous
concurrence among interests represented on a Negotiated Rulemaking
Committee, unless the Negotiated Rulemaking Committee itself
unanimously agrees to use a different definition. To start the process,
the Agency identifies all interests potentially affected by the
rulemaking under consideration. To help in this identification process,
the Agency publishes a notice in the Federal Register, such as this
one, which identifies a preliminary list of interests and requests
public comment on that list. Following receipt of the comments, the
Agency establishes a committee representing these various interests to
negotiate a consensus on the terms of a proposed rule. Representation
on the Negotiated Rulemaking Committee may be direct, that is, each
member represents a specific interest, or may be indirect, through
coalitions of parties formed for this purpose. The Agency is a member
of the Negotiated Rulemaking Committee representing the Federal
government's own set of interests. The Negotiated Rulemaking Committee
is facilitated by a trained mediator, who facilitates the negotiation
process. The role of this mediator, or facilitator, is to apply proven
consensus building techniques to the advisory committee setting.
If a regulatory negotiation advisory committee reaches consensus on
the provisions of a proposed rule, the Agency, consistent with its
legal obligations, would use such consensus as the basis of a proposed
rule, to be published in the Federal Register. This provides the
required public notice and allows for a public comment period. All
participants and interested parties would retain their rights to
comment and to seek judicial review. EPA anticipates, however, that any
preproposal consensus agreed upon by this Negotiated Rulemaking
Committee would effectively address all major issues prior to
publication of a proposed rulemaking.
C. What is the Agency commitment?
In initiating this regulatory negotiation process, EPA is making a
commitment to provide adequate resources to ensure timely and
successful completion of the process. This commitment includes making
the process a priority activity for all representatives, components,
officials, and personnel of the Agency who need to be involved in the
rulemaking, from the time of initiation until such time as a final rule
is issued or the process is expressly terminated. EPA will provide
administrative support for the process and will take steps to ensure
that the Negotiated Rulemaking Committee has the dedicated resources it
requires to complete its work in a timely fashion. These include the
provision or procurement of such support services as: Properly equipped
space adequate for public meetings and caucuses; logistical support;
distribution of background information; the service of a facilitator;
and such additional research and other technical assistance as may be
necessary. If there is consensus within the Negotiated Rulemaking
Committee, EPA will use the consensus to the maximum extent possible,
consistent with the legal obligations of the Agency, as the basis for a
rule proposed by the Agency for public notice and comment. The Agency
is committed to working in good faith to seek consensus on a proposal
that is consistent with the legal mandate of TSCA.
D. What is the negotiating consensus?
A key principle of negotiated rulemaking is that agreement is by
consensus of all the interests. Thus, no one interest or group of
interests is able to control the process. Again, the NRA defines
consensus as the unanimous concurrence among interests represented on a
Negotiated Rulemaking Committee, unless the Negotiated Rulemaking
Committee itself unanimously agrees to use a different definition. In
addition, experience has demonstrated that using a trained mediator to
facilitate this process will assist all potential parties, including
EPA, to identify their interests in the rule and so to be able to
reevaluate previously stated positions on issues involved in this
rulemaking effort.
IV. Chemical Data Reporting for Inorganic Byproduct Chemical Substances
A. Chemical Data Reporting (CDR) Framework
Under TSCA, EPA regulates the manufacture, processing,
distribution, use, and disposal of chemical substances in the United
States. The TSCA Inventory of Chemical Substances (TSCA Inventory)
lists the chemical substances which are manufactured or processed in
the United States (also called ``existing chemical substances'').
Chemical substances not on the TSCA Inventory are known as ``new
chemical substances'' and are required to be reviewed through EPA's new
chemical program (under TSCA section 5) prior to the commencement of
manufacture or processing. There are over 85,000 chemical substances
listed on the TSCA Inventory.
In 1986, EPA created the Inventory Update Reporting (IUR)
regulation under TSCA section 8 to collect, every four years, limited
information on the manufacture (which includes import) of organic
chemical substances listed on the TSCA Inventory, thereby providing
more up-to-date production volume information on the chemical
substances in U.S. commerce. In 2005, EPA amended the IUR to require
the reporting of information on inorganic chemical substances and to
collect additional manufacturing, processing, and use information. EPA
has since made additional changes to the reporting requirements, and in
2011 changed the name of the reporting rule to Chemical Data Reporting.
CDR regulations are currently codified at 40 CFR part 711. EPA believes
CDR is the only current reporting obligation under TSCA section 8(a)
that is likely to affect the manufacturers of inorganic byproduct
chemical substances. Information collected under CDR is used to support
Agency programs, providing exposure-related data for chemical
substances subject to TSCA in U.S. commerce. This information is also
made publicly available, to the extent possible while continuing to
protect submitted information claimed as confidential business
information.
Manufacturers of inorganic chemical substances first reported under
the IUR in 2006. They also reported under the CDR in 2012 and 2016.
Specific reporting requirements for these manufacturers were phased in,
to allow for the industry to better understand the reporting
requirements and for EPA to
[[Page 90846]]
gain a better understanding of the industry. In recent years, the
regulatory requirement to report byproduct chemical substances (and the
availability of exemptions from that requirement) has been a frequent
topic of discussion.
B. Inorganic Byproduct Chemical Substances Under CDR
A byproduct chemical substance is a chemical substance produced
without a separate commercial intent during the manufacture,
processing, use, or disposal of another chemical substance or mixture.
Such byproduct chemical substances may, or may not, in themselves have
commercial value. They are nonetheless produced for the purpose of
obtaining a commercial advantage. Because byproduct chemical substances
are manufactured for a commercial purpose, such manufacturing is
reportable under CDR unless covered by a specific reporting exemption.
CDR contains a specific reporting exemption for the manufacture of
byproduct chemical substances, limited to cases where those byproduct
chemical substances are not used for any commercial purposes (or are
only used for certain limited commercial purposes) after they are
manufactured. 40 CFR 711.10(c). Inorganic byproduct chemical substances
are often recycled. The recycling of a byproduct chemical substance may
qualify as a commercial purpose beyond the limited commercial purposes
encompassed by 40 CFR 711.10(c). If so, then the CDR exemption for the
manufacturer of a byproduct chemical substance is unavailable.
Beginning in 2006, EPA became aware of a variety of questions
raised by the manufacturers of inorganic byproduct chemical substances
about their obligations to report their manufacture of those byproduct
chemical substances. EPA has since provided detailed guidance to
address a variety of questions that have been raised. See 75 FR 49675-6
(2010); 76 FR 50832-3, 50849-50851 (2011). In 2011, EPA also stated
that it would examine CDR information related to byproduct chemical
substances to identify whether there are segments of byproduct chemical
substance manufacturing for which EPA can determine that there is no
need for the CDR information to continue to be collected, either for
2016 or for future reporting cycles. 76 FR 50832-3 (2011). EPA did not
amend the CDR requirements for the 2016 reporting cycle. Documents
providing information to assist inorganic byproduct chemical substance
manufacturers with reporting under CDR requirements include:
Instructions for the 2016 TSCA CDR (Ref. 1); CDR Byproduct and
Recycling Scenarios (Ref. 2); TSCA CDR Fact Sheet for the Printed
Circuit Board Industry (Ref. 3); and TSCA CDR Fact Sheet for Reporting
Manufactured Chemical Substances from Metal Mining and Related
Activities (Ref. 4).
On June 22, 2016, TSCA was amended by the Lautenberg Act. TSCA now
includes a requirement that EPA enter into a negotiated rulemaking,
pursuant to the NRA, to develop and publish a proposed rule to limit
the reporting requirements under TSCA section 8(a), for manufacturers
of any inorganic byproduct chemical substances, when such byproduct
chemical substances, whether by the byproduct chemical substance
manufacturer or by any other person, are subsequently recycled, reused,
or reprocessed. The objective of the negotiated rulemaking process is
to develop and publish a proposed rule by June 22, 2019. In the event a
proposed rule is developed through the negotiated rulemaking process, a
final rule ``resulting from such negotiated rulemaking'' must be issued
by December 22, 2019. 15 U.S.C. 2607(a)(6).
EPA construes its obligation to propose and finalize a rule under
TSCA section 8(a)(6) as being contingent on the Negotiated Rulemaking
Committee reaching a consensus. EPA's interpretation is based on
several factors. First, TSCA section 8(a)(6)(A) does not give any
direction on how CDR reporting requirements for the specified byproduct
chemical substance manufacturers should be limited, other than
directing that the particular limitations should be negotiated. Second,
EPA's obligation to finalize a rule under TSCA section 8(a)(6)(B)
presupposes that such rule would be one ``resulting from such
negotiated rulemaking.'' While EPA would have authority to issue an
amendment to the CDR even if negotiation failed to achieve a consensus,
such a rule would not be a rule resulting from the negotiated
rulemaking. Accordingly, TSCA section 8(a)(6)(B) presupposes that the
negotiated rulemaking process reached a consensus in directing EPA to
issue a final rule. If the obligation to issue a final rule is so
contingent, then it stands to reason that the prior obligation to issue
a proposal is similarly contingent. Third, the time allotted for
issuing a final rule (i.e., six months) is relatively short, consistent
with a presupposition that the proposal in question would be the
product of a successful negotiation. As noted in Unit III., the process
of responding to comment on a proposal would likely be simplified if
that proposal is itself the result of a previously negotiated
consensus. For the reasons described above, if consensus cannot be
reached, and there is no agreement upon which to base a proposal, then
there is no further statutory obligation to issue a proposal or a final
rule.
V. Proposed Negotiating Procedures
A. Interests Involved
Section 562 of the NRA defines the term ``interest'' as one of
``multiple parties which have a similar point of view or which are
likely to be affected in a similar manner.'' We anticipate that the
following key interests are likely to be significantly affected by the
rule to be addressed by the Negotiated Rulemaking Committee while
negotiating how to limit CDR requirements for manufacturers of any
inorganic byproduct chemical substances, when such byproduct chemical
substances are subsequently recycled, reused, or reprocessed:
[ssquf] Inorganic chemical manufacturers and processors, including
metal mining and related activities;
[ssquf] Recyclers, including scrap recyclers;
[ssquf] Industry advocacy groups;
[ssquf] Environmental advocacy groups;
[ssquf] Federal, State, or Tribal governments; and
[ssquf] Employee advocacy groups, such as labor unions.
B. Negotiated Rulemaking Committee Formation
The Negotiated Rulemaking Committee will be formed and operated in
full compliance with the requirements of FACA in a manner consistent
with the requirements of the NRA.
C. Negotiated Rulemaking Committee Membership
The Agency intends to conduct the negotiated rulemaking proceedings
with particular attention to ensuring full and adequate representation
of those interests that may be significantly affected by a rule
providing for limiting CDR requirements for inorganic byproduct
chemical substances. We have listed those interests likely to be
significantly affected by a rule in Unit V.A., and the following list
identifies the parties that the Agency has initially identified as
representing interests likely to be significantly affected by a rule:
Aluminum Association
American Chemistry Council
American Coal Ash Association
[[Page 90847]]
Environmental Defense Fund
Institute of Scrap Recycling Industries
IPC--Association Connecting Electronics Industries
North American Metals Council
National Mining Association
U.S. Environmental Protection Agency
Utility Solid Waste Activities Group
The listed parties have been preliminarily identified by EPA as
being either a potential member of the Negotiated Rulemaking Committee,
or a potential member of a coalition that would in turn nominate a
candidate to represent one of the significantly affected interests
listed in Unit V.A. This list is not presented as a complete or
exclusive list from which Negotiated Rulemaking Committee members will
be selected, nor does inclusion on the list mean that a party on the
list has agreed to participate as a member of the Negotiated Rulemaking
Committee or as a member of a coalition. This list merely indicates
those parties that represent interests that EPA has tentatively
identified as being significantly affected by a rule providing for
limiting CDR requirements for inorganic byproduct chemical substances.
EPA anticipates that the Negotiated Rulemaking Committee will be
comprised of approximately 10-25 members representing significantly
affected interests. The EPA Administrator will select members carefully
to ensure that there is a balanced representation of such interests on
the Negotiated Rulemaking Committee. EPA anticipates that the
Negotiated Rulemaking Committee will contain representatives from
industry, environmental groups, and state, local, and tribal
governments.
One purpose of this document is to determine whether the negotiated
rulemaking will significantly affect interests that are not listed in
Unit V.A., as well as whether the list of parties the Agency has listed
identifies accurately and comprehensively a group of stakeholders
representing the significantly affected interests listed in Unit V.A.
EPA requests comment and suggestions on the list of significantly
affected interests, as well as the list of proposed representatives of
those interests. EPA recognizes that any regulatory actions it takes
under this program may at times affect various segments of society in
different ways, and that this may in some cases produce unique
interests in a rule based on demographic factors. Particular attention
will be given by the Agency to ensure that any unique interests that
have been identified in this regard, and that may be significantly
affected by any rule resulting from the negotiation, are represented.
This document affords potential participants the opportunity to
request representation in the negotiations. Request such representation
by submitting a comment as described under ADDRESSES in this notice.
Section 565(b) of the NRA requires the Agency to limit membership
on a Negotiated Rulemaking Committee to 25 members, unless the Agency
determines that more members are necessary in order for the Negotiated
Rulemaking Committee to function or to achieve balanced membership. The
Agency believes that the negotiating group should not exceed 25
members, which would make it difficult to conduct effective
negotiations. EPA is aware that there are many more than 25 potential
participants to consider for the Negotiated Rulemaking Committee. The
Agency does not believe, nor does the NRA contemplate, that each
significantly affected interest must participate directly in the
negotiations; however, each significantly affected interest can be
adequately represented. To have a successful negotiation, it is
important for significantly affected interests to identify and form
coalitions that adequately represent those interests. These coalitions,
to provide adequate representation, must agree to support, both
financially and technically, a member to the Negotiated Rulemaking
Committee whom they will choose to represent their interest. The Agency
believes it is very important to recognize that interested parties who
are not selected to membership on the Negotiated Rulemaking Committee
can still make valuable contributions to this negotiated rulemaking
effort in any of several ways:
The party could request to be placed on the Negotiated
Rulemaking Committee mailing list, submitting written comments, as
appropriate;
The party could attend the Negotiated Rulemaking Committee
meetings, which are open to the public, caucus with his or her
interest's member on the Negotiated Rulemaking Committee, or even
address the Negotiated Rulemaking Committee (usually allowed at the end
of an issue's discussion or the end of the session, as time permits);
or
The party could assist a workgroup that might be
established by the Negotiated Rulemaking Committee.
An advisory committee may convene informal workgroups to assist the
Negotiated Rulemaking Committee in ``staffing'' various discrete and
technical matters (e.g., researching or preparing summaries of the
technical literature or comments on particular matters such as economic
issues) so as to facilitate Negotiated Rulemaking Committee
deliberations. They also might assist in estimating costs and drafting
regulatory text on issues associated with the analysis of the
affordability and benefits addressed, and formulating drafts of the
various provisions and their justification previously developed by the
Negotiated Rulemaking Committee. Given their staffing function,
workgroups usually consist of participants who have expertise or
particular interest in the technical matter(s) being studied. Because
it recognizes the importance of this staffing work for the Negotiated
Rulemaking Committee, EPA will provide appropriate administrative and
technical expertise for such workgroups.
EPA requests comment regarding particular appointments to
membership on the Negotiated Rulemaking Committee. Members can be
individuals or organizations. If the effort is to be successful,
participants should be able to fully and adequately represent the
viewpoints of their respective interests. Those who wish to be
appointed as members of the Negotiated Rulemaking Committee should
submit a request to EPA by submitting a comment as described under
ADDRESSES in this notice. The list of potential Negotiated Rulemaking
Committee members provided earlier in this document includes those who
have been initially identified by EPA as being either a potential
member of the Negotiated Rulemaking Committee, or a potential member of
a coalition that would in turn nominate a candidate to represent one of
the significantly affected interests on the Negotiated Rulemaking
Committee.
EPA values and welcomes diversity. In an effort to obtain
nominations of diverse candidates, EPA encourages nominations of women
and men of all racial and ethnic groups.
D. Good Faith Negotiation
Negotiated Rulemaking Committee members should be willing to
negotiate in good faith and have the authority, from her or his
constituency, to do so. The first step is to ensure that each member
has good communications with her or his constituencies. An intra-
interest network of communication should be established to bring
information from the support organization to the member at the table,
and to take information from the table back to the support
organization. Second, each organization or coalition should, therefore,
designate as its
[[Page 90848]]
representative an official with credibility and authority to insure
that needed information is provided and decisions are made in a timely
fashion.
Negotiated rulemaking efforts can require a very significant
contribution of time by the appointed members. The convening meeting of
the Negotiated Rulemaking Committee is expected to be held in March
2017, and the work of the Negotiated Rulemaking Committee is expected
to conclude approximately in September 2017.
Other qualities that can be very helpful are negotiating experience
and skills, as well as sufficient technical knowledge to participate in
substantive negotiations. Certain concepts are central to negotiating
in good faith. One is the willingness to bring key issues to the
bargaining table in an attempt to reach a consensus, instead of keeping
issues in reserve. The second is a willingness to keep the issues at
the table and not take them to other forums. Finally, good faith
includes a willingness to move away from the type of positions usually
taken in a more traditional rulemaking process, and instead explore
openly with other parties all ideas that may emerge from the
discussions of the Negotiated Rulemaking Committee.
E. Facilitator
The facilitator will not be involved with the substantive
development of any proposed rule. Rather, the facilitator's role
generally includes facilitating the meetings of the Negotiated
Rulemaking Committee in an impartial manner and impartially assisting
the members of the Negotiated Rulemaking Committee in conducting
discussions and negotiations.
F. EPA Representative
The EPA representative will be a full and active participant in the
consensus building negotiations. The Agency's representative will meet
regularly with various senior Agency officials, briefing them on the
negotiations and receiving their suggestions and advice, in order to
effectively represent the Agency's views regarding the issues before
the Negotiated Rulemaking Committee. EPA's representative also will
ensure that the entire spectrum of federal governmental interests
affected by the rulemaking, including the Office of Management and
Budget (OMB) and other Departments and agencies, are kept informed of
the negotiations and encouraged to make their concerns known in a
timely fashion.
VI. Comments Requested
EPA requests comment on the extent to which the issues, interests,
Negotiated Rulemaking Committee representatives, and procedures
described in this document are adequate and appropriate.
VII. References
The following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents referenced
within the documents that are included in the docket, even if the
referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the
technical person listed under FOR FURTHER INFORMATION CONTACT.
1. EPA (2016). Instructions for Reporting 2016 TSCA CDR, https://www.epa.gov/sites/production/files/2016-05/documents/instructions_for_reporting_2016_tsca_cdr_13may2016.pdf. Retrieved
October 21, 2016.
2. EPA (2012). CDR Byproduct and Recycling Scenarios, https://www.epa.gov/sites/production/files/documents/2012_cdr_byproducts_scenaros_0.pdf. Retrieved October 21, 2016.
3. EPA (2016). TSCA CDR Fact Sheet: Byproducts Reporting for the
Printed Circuit Board Industry, https://www.epa.gov/sites/production/files/2016-02/documents/final_cdr_fact_sheet_printed_circuit_board_2_22_16.pdf. Retrieved
October 21, 2016.
4. EPA (2016). TSCA CDR Fact Sheet: Reporting Manufactured Chemical
Substances from Metal Mining and Related Activities, https://www.epa.gov/sites/production/files/2016-05/documents/cdr_fact_sheet_metal_mining_5may2016.pdf. Retrieved October 21,
2016.
Authority: 15 U.S.C. 2601 et seq.
Dated: December 7, 2016.
Jim Jones,
Assistant Administrator, Office of Chemical Safety and Pollution
Prevention.
[FR Doc. 2016-30177 Filed 12-14-16; 8:45 am]
BILLING CODE 6560-50-P
